IN THE ELRC ARBITRATION
BETWEEN:
SADTU obo PRIMROSE SILUNGILE XIMBA “the Applicant”
and
DEPARTMENT OF EDUCATION – KWAZULU NATAL “the 1st Respondent”
MYEZA, BUSISIWE “ the 2nd Respondent”
ARBITRATION AWARD
Date of arbitration: 4 July 2024
Date of the award: 18 July 2024
ELRC Arbitrator: Lindiwe Makhanya
Education Labour Relations Council
DETAILS OF HEARING AND REPRESENTATION
1. This arbitration commenced on 23 May 2024 and was finalised on 4 July 2024. It was held virtually under the auspices of the Education Labour Relations Council (“the council”) ELRC in terms of section 191(5) (a) of the Labour Relations Act No.66 of 1995, as amended (“the Act”).
2. The Applicant, Ms. Primrose Silungile Ximba, was represented by Mr. S. Mthimkhulu, Union Official from SADTU. The second Respondent, Ms. Busisiwe Myeza was represented by Mr. S.P. Sibisi, an Attorney from SP Sibisi Attorneys, and the first Respondent, Department of Education-KwaZulu Natal, was represented by Mr. I. Makhooe from the Labour Relations department. The proceedings were digitally recorded.
PRELIMINARY ISSUES, JURISDICTION, and ISSUES TO BE DECIDED
3. No jurisdictional issues were raised.
4. I have to decide whether or not the first Respondent committed unfair labour practice by not appointing the Applicant.
5. The Applicant sought for the shortlisting process to be re-done.
BACKGROUND TO THE DISPUTE
6. The first Respondent is the Department of Education, located in Durban, KwaZulu-Natal. The Applicant has been employed by the Department for 28 years and has held the position of Departmental Head for the past eight years. In April 2023, she applied for the position of Deputy Principal at Amatikwe Primary School, as advertised in post number 524. Despite meeting the minimum requirements for the position, she was not shortlisted. The second Respondent was shortlisted and subsequently appointed to the Deputy Principal position.
7. The Applicant earned an annual salary of R439,866.00
SURVEY OF EVIDENCE AND ARGUMENT
8. The first Respondent presented a bundle of documents marked “Common Bundle”. Both parties submitted their written closing arguments on 10 July 2024.
THE APPLICANT’ CASE
9. Ms. Primrose Silungile Ximba testified that she held the position of Departmental Head at Amatikwe Primary School for eight years and had been employed by the Respondent for 28 years. In 2023, she applied for the Deputy Principal position at four different schools, including Amatikwe Primary School, using the same Curriculum Vitae (CV) for all applications. However, she was only shortlisted by two schools, while Amatikwe Primary School and one other school did not shortlist her.
10. After not being shortlisted at Amatikwe Primary School, Ms. Ximba lodged a grievance. The reasons provided by the resource person for her non-selection included the consideration of candidates who had acted in the position for 12 months, candidates who completed their documents using only black pens, and the disqualification of incomplete CVs. When questioned by the grievance committee, the resource person appeared confused about the shortlisting process and was informed that the process he described was a sifting process.
11. Furthermore, the resource person admitted to using their own criteria for shortlisting. Ms. Ximba asserted that her CV was complete and signed using a black pen and that she met the minimum requirements of the position.
12. Under cross- examination, she insisted that she applied for the position in four schools but was only shortlisted in two schools.
13. She disputed that she was not shortlisted in other schools because her CV did not meet the threshold.
14. She denied that the criteria of the other schools would make her not to be shortlisted for the position.
15. Mr. Mbuyisa from SADTU was present during the shortlisting process and had told her what transpired. When she was asked why Mr. Mbuyisa did not lodge a grievance if he had observed irregularities during the shortlisting process, she said she did not know.
16. In re- examination she said she did not know the role of the observer in the recruitment process.
THE RESPONDENT’S CASE
17. Both the first and second Respondents did not present any witnesses to testify. The first Respondent stated that since the Applicant closed her case without presenting the evidence of Mbuyisa, there was no case to rebut, as the Applicant’s evidence depended on Mbuyisa’s testimony.
ANALYSIS OF EVIDENCE AND ARGUMENT
18. I have taken note of section 186(2) of the Act, which states that an “unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving-
(a) the unfair promotion of an employee. I read this section together with section 185 (b) of the Act which states as follows; “Every employee has the right not to be: (b) subjected to unfair labour practice.
19. The Applicant bears the onus to prove that she was subjected to an unfair labour practice related to promotion.
20. It was common cause that the Applicant applied for the position of Deputy Principal at Amatikwe Primary School but was not shortlisted for the interviews. It was not disputed that the Applicant met the minimum requirements of the position advertised.
21. The Applicant demonstrated that she had the necessary qualifications and experience, having served as a Departmental Head for eight years and worked for the Respondent for 28 years. Her consistent use of the same CV across multiple applications, with differing shortlisting results, raises questions about the uniformity and fairness of the shortlisting process.
22. The Respondent did not present any witnesses to counter the Applicant’s claims, nor did they provide substantial evidence to justify the shortlisting decisions. The testimony of the Applicant which was not challenged highlighted significant irregularities in the shortlisting process. The resource person’s confusion and the admittance of using their own criteria suggest a deviation from the established shortlisting procedures. The lack of clarity and consistency in the shortlisting criteria used by the first Respondent undermines the fairness of the process.
23. The first Respondent argued that since Mr. Mbuyisa was not called upon to testify it was not necessary to rebut the Applicant’s claim
24. In Pamplin v Western Cape Education Department (C 1034/2015) [2018] ZALCCT (handed down on 9 May 2018) the Court emphasised that whilst in unfair labour practice disputes relating to promotion the onus is on the Employee to demonstrate that the failure to promote was unfair, the Employer, is in the same token, obliged to defend challenges on the substantive and procedural fairness, if it wishes to avoid a negative outcome. According to the Court, there is an obligation on the Employer to place evidence that it acted fairly and in good faith during the promotion exercise. In the absence of such evidence, it would be irrational and unreasonable to conclude that the Employer acted fairly, regardless of where the onus lies. The Court also highlighted the fact that Commissioners should warn the parties about the adverse inference that might be drawn against them for failing to call witnesses.
25. The first Respondent’s decision not to present any witnesses represents a missed opportunity to contest the Applicant’s claims, which may be viewed as a lack of substantive defence. Moreover, the absence of a member from the interview panel who could have clarified the shortlisting criteria used, leading to the Applicant’s disqualification, reinforces concerns about the fairness and integrity of the recruitment process employed by the first Respondent. This absence contributes to the perception that the shortlisting process may have been flawed and unfair.
26. According to HRM Circular No. 20 of 2023, an Educator with five years of actual teaching experience was required for the position of Deputy Principal, and the Applicant had 28 years of experience. The first Respondent should have provided reasons for not shortlisting the Applicant, which it failed to do.
27. Given the evidence and arguments presented, it is apparent that the first Respondent committed an unfair labour practice by not shortlisting the Applicant. The shortlisting process was marred by inconsistencies and irregularities, as demonstrated by the resource person’s confusion and deviation from standard procedures. The Applicant, having met the minimum requirements and demonstrated a consistent record of qualifications and experience, was unjustly excluded from the shortlist for the Deputy Principal position at Amatikwe Primary School.
28. The Applicant succeeded to prove that she was subjected to unfair labour practice by the first Respondent when she was not shortlisted at Amatikwe Primary School.
29. While the Applicant has demonstrated unfairness in the recruitment process by the first Respondent, there was no evidence presented to suggest that, if it were not for the first Respondent’s conduct, the Applicant would have been promoted. Without the Applicant being subjected to an interview and being ranked or compared against all candidates who took part in the same process, there is nothing to rely on to prove that the Applicant would have been the best candidate if she had been shortlisted.
30. It can therefore not be said that the process ought to be redone when the Applicant was unable to prove that she was most suitably qualified candidate. Merely claiming she was not shortlisted when she met the minimum requirements was insufficient to prove that she would have been the best candidate after the interview process. Thus, she could not substantiate a claim for substantive unfairness. However, the first Respondent’s actions during the recruitment process indicate procedural flaws in the shortlisting process.
31. Section 193(4) of the LRA stipulates that an arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment or compensation.
32. Based on all the evidence presented and taking into account ELRC Collective Agreement No 3 of 2016, for procedural unfairness, one month compensation is justifiable. The Applicant is currently earning R36,655.50 per month.
33. I, therefore, make the following award:
34. AWARD
(a) The first Respondent, Department of Education- KwaZulu Natal committed an unfair labour practice as provided in section 186(2)(a) of the LRA in that it acted in a procedurally unfair manner when it did not shortlist the Applicant, Primrose Silungile Ximba.
(b) The first Respondent is ordered to pay the Applicant R36,655.50 within 14 days upon receiving this award.
(c) The amount referred to in paragraph (b) to be paid into the Applicant’s bank account.
(d) In respect of substantive fairness, the Applicant failed to discharge the onus placed on her.
(e) The appointment of the second Respondent is not set aside.
LINDIWE MAKHANYA
PANELLIST